McMaster and Culliss

[2008] FamCA 5

FAMILY COURT OF AUSTRALIA

MCMASTER & CULLISS [2008] FamCA 5

FAMILY LAW – CHILDREN – Parenting – Time spent – Interim orders – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: MR MCMASTER

RESPONDENT: MS CULLISS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 985 of 2006

DATE DELIVERED: 3 JANUARY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 3 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MANSFIELD

SOLICITOR FOR THE APPLICANT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR ZEMLJAK

SOLICITOR FOR THE RESPONDENT: TOLHURST DRUCE & EMMERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

ORDERS

1. THAT the proceedings be forthwith transferred for hearing to the Federal Magistrates Court.

2. THAT all existing parental and time spent with orders be discharged.

3. THAT until further order the child of the relationship … born … November 2005 live with the mother.

4. THAT subject to orders 5, 6, 9 and 10 hereof, the child spend time and communicate with the father as follows:

   (a)on each Wednesday between the hours of 9.30 a.m. and 1.30 p.m.; and

   (b)on each Saturday between the hours of 10.30 a.m. and 4.30 p.m.

5. THAT the time to be spent by the father with the child on Wednesday 13 February 2008 be suspended and in lieu thereof a like period be spent on the following day, Thursday 14 February 2008.

6. THAT all time spent with periods are suspended on the last Wednesday and Saturday of each calendar month when the child will remain with the mother (save for the last Saturday in March 2008).

7. THAT for the purposes of the Wednesday time, the father collect and return the child to and from the B Railway Station but be at liberty to travel and enjoy time within either the City of Melbourne or City of B.

8. THAT for the purposes of the Saturday time, the father collect the child from the B Railway Station punctually at 10.30 a.m. and otherwise the mother be responsible for her collection punctually at 4.30 p.m. outside of the father’s unit at …, or at a local venue near to the father’s home by prior arrangement.

9. THAT in each calendar year the mother be entitled to a period of four (4) weeks, inclusive of the last week of each month when the father’s time spend with the child is suspended, and in that period the mother is at liberty to travel, at her expense, interstate or overseas with the child, subject to providing to the father in writing a detailed itinerary of her travel movements and contact numbers six weeks in advance of any departure date.

10. THAT the time spent period that would have occurred on Saturday 8 March 2008 be suspended and in lieu thereof the father spend time with the child on both Friday 7 March 2008 and Saturday 29 March 2008, on the same terms of the six (6) hour period and timetable as was earlier outlined.

11. THAT the pursuant to s 62G of the Family Law Act 1975 (Cth), Ms B, or a Family Consultant otherwise appointed by the Director of the Child Dispute Services, prepare an updated Family Report on all issues of and concerning the best interests of the child and appropriate time to be spent by her with the father, such report to be prepared in or about April 2008 and available for the final defended hearing to be held in the Federal Magistrates Court on a date and time to be fixed.

12. THAT the parties do all acts and things and cooperate in all ways with the Independent Children’s Lawyer in obtaining an updated psychiatric report from Dr J, and it is requested that Victoria Legal Aid pay for the cost of such further consultation and updated report, again to be prepared in or about April/May 2008.

13. THAT the Independent Children’s Lawyer be at liberty to provide all court documents, subpoenaed material and other relevant material to Dr J, and each of the solicitors for the parties are to prepare a letter of issues or concerns for consideration by Dr J, but within the context that Dr J is asked to provide only an updated report.

14. THAT all previous restraining orders or undertakings given by the mother of or in relation to obtaining a passport for the child be discharged and the mother be at liberty to apply for and obtain a valid Australian passport for the child, she then to hold same in safe custody pending any overseas travel as identified to the father pursuant to these orders.

15. THAT upon obtaining the passport for the child, the mother and the child be and are each hereby restrained from departing the Commonwealth of Australia on any date prior to 1 October 2008 and otherwise the mother and child must be available and remain within the State of Victoria for any defended hearing date as may be fixed by the Federal Magistrates Court.

16. THAT all interim applications inclusive of the application filed 10 December 2007 and the response filed 28 December 2007 be dismissed and the Form 1 application of the father filed 16 March 2006 be and remain the primary application transferred for defended hearing to the Federal Magistrates Court.

17. THAT the extempore reasons for judgment be transcribed and placed upon the court file and be made available to all parties and to the Family Consultant, and if requested, to Dr J.

18. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS NOTED:

A.THAT the mother has advised the Court that she will be travelling to Perth and Darwin at the end of February and July respectively for a holiday of no more than ten (10) days duration on each occasion and there is no objection to that travel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as McMaster & Culliss

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 985 of 2006

MR MCMASTER

Applicant

And

MS CULLISS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of McMaster and Culliss and the Independent Children's Lawyer has again been before me for an interim hearing.  Ms Mansfield of counsel appears for the applicant father Mr Zemljak, solicitor, for the respondent mother; and Ms Agresta appears for the Independent Children's Lawyer.  Both parties were present in court throughout the hearing. 

2. The issues before the court are predominantly parenting and time-spent-with orders for the child born in November 2005 and now just over two years of age.  The history of this matter is known to me and has been the subject of a number of earlier affidavits.  I have delivered various extempore judgments on past occasions.  The matter has not been ready for any final hearing and that remains the current state of the file.  I emphasise up-front however that a final hearing is needed, subject to an appropriate time frame, for further interim orders made this day to be implemented.

3. The application of the mother this day is for the proceedings to be transferred to the Federal Magistrates Court for that final hearing.  That application is wholly embraced by the Independent Children's Lawyer.  After receiving submissions on behalf of the father it is clear that he does not oppose that application.  I will return to determine this issue at the conclusion of these extempore reasons.

4. There are a number of relevant orders that have been made since the first hearing on 20 July 2006.  In particular I have read the orders of that day and further orders of 13 September 2006 and the extempore reasons accompanying those orders.  The current position is that the child lives with her mother and spends time with the father on two occasions in each week, they currently being a Saturday and a Wednesday.  All time-spent-with orders are wholly suspended in the last week of each calendar month and there is an additional requirement that the mother, at her election, is able to be in substantial attendance during time spent by the father with the child. 

5. The further orders of 9 May 2007 and 26 July 2007 and then the more recent orders made in August and November of last year have somewhat finetuned the time-spent-with arrangements.  Additionally other orders have provided for a report to be prepared by a family consultant, Ms B, and that document is dated 25 July 2007 and is in evidence before the court.

6. There was a further order made for the father to undergo consultation and the interview process for the preparation of a psychiatric report.  Mr J’s report is likewise in evidence before the court.  The issue of an update of that report has been raised in these proceedings and if it is that Victoria Legal Aid will fund the further preparation of an update report, which of its very nature may be brief, then that is a matter that I will request but the final hearing cannot be dependent upon the conclusion of any further report.

7. When the matter was last before me I directed both parties to finetune the further interim orders that they sought and that those are now filed with the court, on behalf of the father on 10 December 2007 and on behalf of the mother on 28 December 2007.

8. The orders sought by the father are on an interim basis and they are a progressive order developed over six-week periods where his time is increased until at the age of three there is substantial time spent on a Wednesday and then from Saturday morning until Sunday evening including the overnight of the Saturday night. 

9. In contrast those orders are opposed on behalf of the mother and she actively seeks the transfer of the proceedings to the Federal Magistrates Court and would have all of those escalating time-spent-with periods now sought by the father dismissed.

10. This matter has occupied the whole of the morning and the proceedings have been by way of submissions. There has been a real degree of flexibility in the hearing and I have concentrated the attention of legal practitioners on matters that are in dispute. The fundamental issue in this case is the best interests of the child and orders that are made for her welfare. I have referred the parties to section 60B of the Family Law Act 1975 and the objects and principles of the Act. Also, I have underlined the parental responsibility encompassed in that section.

11. The primary and additional considerations in determining what is in the best interest of a child are embodied in section 60CC and these are fundamental to the interim orders that I will hereafter pronounce.  I did have the benefit of a helpful written submission prepared by the solicitor for the mother and I read that at the outset of the proceedings.  It concentrated upon those primary and additional considerations.  The practitioners for the father and appearing for the independent children's lawyer have responded to those submissions.

12. It is a matter of agreement that interim orders only are to be made this day.  Those orders are to be made on the basis that the child continues to live with the mother.  There is no opposition in the short term to that order being made and that has been and will remain the status quo.  On all the material before me the mother does have a clear understanding of the child’s needs and a level of proper responsibility for the welfare and upbringing of her daughter. 

13. As a result of the submissions received from practitioners and a level of discussion with the court I stood the matter down for a short period so that the practitioners could obtain appropriate instructions from their clients, particularly in the context of a general indication that I had given of likely orders I would make, having heard all of the submissions and read all of the evidence.

14. The present position is that I will vary the time-spent-with orders.  In the best interests of the child I will preserve the last week of each month to be free of the operation of time-spent-with orders in favour of the father.  I do intend to vary the current orders so that on a Wednesday there will be a period of four hours between 9.30 a.m. and 1.30 p.m. where the father, having travelled by train to B Railway Station, can there collect the child from the mother and she is to be with him unsupervised.  He is not restricted to the immediate B area but, with proper care and understanding on his behalf, can travel to the City of Melbourne or otherwise within the City of B.  Time does not permit any other travel by train to other locations and his fundamental obligation is punctually to return the child to the mother at 1.30 p.m. at the B Railway Station, she having been fed and of course having received his complete care and attention throughout that earlier four-hour period.  Likewise, the mother's obligation is to deliver up the child punctually at 9.30 a.m. and to be there awaiting her collection at 1.30 p.m. on the Wednesdays.

15. On each Saturday save the last Saturday of the month I intend there to be six hours.  I intend that the travel be shared.  The best arrangement would be for the father to travel to B Railway Station and there to collect the child.  I propose that the times on that day be between 10.30 and 4.30 p.m.  That will mean that the father may well have to accommodate an afternoon sleep.  It will mean that the child is always home before dark and it endeavours to accommodate a timetable suitable to the child and the parents.  On that occasion the father is at liberty to return the child to his home and the mother will collect the child at 4.30 p.m. punctually either outside of the father's home or at a nearby agreed local facility such as a restaurant or other child-friendly venue within reasonable walking distance of the father's home.  I intend there to be some flexibility as the father does not have a car and I do not necessarily want the child taken out in inclement weather at 4.30 p.m. if it is in her best interest and health to be collected from the front gate.

16. The mother is not to enter the home.  The father is to facilitate a friendly environment from handover, and if these people can be mature then he should simply bring the child the mother who would place the child in her car and there would be only a civil and polite exchange between the partners.  I am somewhat unsure if that is possible at all times, but that clearly is in the child's interests.

17. I do intend to suspend the period of all time spent for maximum period of four weeks in any year to facilitate the mother having a holiday either interstate or overseas.  She must provide a complete written itinerary to the father no less than six weeks in advance of departure.  I will deal with all passport issues today.  The present situation is that the mother holds the application signed by the father.  She may now process that application and obtain a passport for the child but she is not to depart the Commonwealth of Australia with the child without giving six weeks prior written notice to the father and at all times wherever she travels the itinerary must be fully disclosed.

18. I will make no airport watchlist order.  I intend there to be a level of freedom to travel responsibly but within the maximum period of four weeks in any year.  I specifically had no concern that the mother was a flight risk or would not return to her extended family in Australia.  The issue of makeup time to be spent with the child has been raised but I intentionally do not propose to further deal with that issue today.  If it is appropriate it is only on the final hearing.

19. Generally I comment upon the concerns that have been raised by one parent against another.  There are matters of some concern in the affidavit material that they are not fully supported by corroborating the facts.  These parents clearly do not have a level of communication one with the other.  They probably each have a less than perfect understanding of what their relationship should be - and how the child should be - to before.  I intend to restrict any critical comments that otherwise I may have made, but clearly it is fundamentally important for these parents to take no risks with the child and her health and wellbeing.

20. She must be the first priority in their lives.  They are each parents and therefore they have responsibilities, but they also must acknowledge the role of the other as a parent, and the benefit that the child can and should obtain from some level of relationship with that other party. 

21. In terms of the future preparation of this case for a defended hearing, it would be helpful if a report could be obtained from Ms B or such other family consultant as is nominated by the director of the court dispute resolution service.  I intend it to be Ms B but if for any reason she is unavailable then an update report can be prepared by another appropriately trained expert in the employ of the court.  Both parties must in all ways cooperate with that updated report which ideally should be prepared mid-year so that it would be completed and ready for any court hearing that might be able to take place on or after June of this year.

22. Dr J has prepared a psychiatric assessment of the husband, and if Legal Aid are able to extend funding it may be helpful if that can be both updated and clarified.  I would ask the Independent Children's Lawyer to coordinate that matter and it could perhaps proceed on the basis that solicitors for each party provide a letter of issues to Dr J, though I stress it is a limited updated report and in due course Dr J may be required for cross‑examination.  I had earlier indicated and I incorporate in these reasons that any interstate travel or overseas travel by the mother must not occur before 1 October of this year.  It is not to jeopardise the defended hearing of this matter.

23. As to further affidavits, I do not propose to make any orders.  There are already numerous affidavits filed on a piecemeal basis, and responding to issues to be raised in the various interim hearings that have occurred.  Clearly at some point in time there does need to be one updated consolidated affidavit filed by both parties but that is a matter to be case managed hereafter.  Likewise I have expressed a view that there should be few if any witnesses in support of the parents.  I do not currently understand that the ability of the mother to properly raise the child is an issue.  So much of my concentration in this case is on the issues of what time and what level of communication there should be between father and daughter and that does seem to be the central issue in this case.

24. As to the venue of the further hearing, this court has a discretionary power to transfer proceedings to the Federal Magistrates Court as provided for in section 33B of the Act.  Subsection (6) highlights that if a transfer is to be considered the court must have regard to the matters identified in subparagraphs (a) - (b) thereof and I have had particular regard to each of those sub-factors.  The particular issues in this case are that all parties actively request or otherwise the father now supports the transfer.  I have no doubt that the Federal Magistrates Court is sufficiently resourced to hear and determine the proceedings.  The final hearing estimate remains less than two days.  The primary witnesses are the mother and father and the family consultant.  There may likely be no other witnesses though that is said subject to any medical evidence.  The matter is appropriate in my considered opinion for transfer not just because the parties so request but because it could be more expeditiously heard and determined and hopefully at lesser cost than in this court.

25. There are no pending property proceedings or other matters to retain this matter in the court and this case is the remnant of the Child Responsive Program that was undertaken last year in this court.  It has been effectively case managed by myself or otherwise various interim hearings, but ultimately there does now need to be a final hearing as soon as practicable, and clearly that can be more speedily heard and determined in the Federal Magistrates Court. 

1. I will make the referral to the child dispute service. For the purposes of the updated family report pursuant to section 62G(2) and I will add to that request if possible by Ms B, though I have no knowledge of her availability. I will ask the independent children's lawyer to facilitate the lodging of that request, and following through who is appropriate and at a convenient but not immediate timetable. I will have these very brief extempore reasons transcribed and placed upon the court file. They and my earlier extempore judgments will hopefully provide a background to the federal magistrate hearing and determining this matter.

DISCUSSION

1. Two other issues have arisen by way of submission.  The father's birthday is 14 February, that is a Thursday.  I will direct that the contact that would have occurred on the 13th - the Wednesday - now occur on the 14th for the same four hour period but that change is on that day only.  I will make no specific order for Easter as Easter Saturday is caught by the orders that will be pronounced.  The child’s birthday is not until 5 November and hopefully this matter will be long heard and concluded by that date.  On behalf of the mother it has been advised to the court that she has two short holidays planned that do not interfere with a regime of time spent, in that at the end of February she travels to Perth and at the end of July she travels to Darwin with the child and these periods are both during the free week.  No other order is needed in that regard. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 11 January 2008